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Friday, June 10, 2016

SCOTX: Illegal searches okay in asset forfeiture cases

Here's more fuel for the fire over policing for profit: The Texas Supreme Court today ruled that law enforcement can seize assets even when police officers violated the law and conducted an illegal search. See the opinion. In the case, police found drugs as a result of an illegal search; the criminal case was thrown out but prosecutors kept appealing on the forfeiture case, hoping to take ownership of the defendant's Lincoln Navigator.

The intermediate appellate court had ruled that the Code of Criminal Procedure "precludes the state from initiating a civil-forfeiture proceeding based on an illegal search." SCOTX, though, ruled that courts may impose no sanction on law enforcement for illegal searches in civil proceedings, holding for the first time that the exclusionary rule does not apply in these cases.

SCOTX decided that the purpose of the exclusionary rule is to punish law enforcement misbehavior as a deterrent and judged cops had been punished enough by throwing out the criminal case. They shouldn't be doubly punished, according to this reasoning, by being disallowed from seizing the defendant's assets.

Can you believe these judges are supposedly conservatives? Hard to imagine a less respectful stance toward the constitution and property rights, much less a more explicit abrogation of limited government principles.

18 comments:

I guess I have to disagree with that conclusion. And I say that as someone who absolutely abhors the civil forfeiture system.

But the main opinion seems quite conservative. The point is not, as you would have it, an issue of property rights. The point is what the remedy will be for violating those rights.

To put it in a Fourth Amendment context, a conservative might be disgusted with the government action that led to an unlawful seizure or arrest, or whatever. But at the same time, he will find it hard to defend the invention out of whole cloth of an exclusionary rule that is neither constitutional nor statutory.

Of course, in a criminal case, that is not an issue any more since the exclusionary rule is so well-settled. (Think of the conservative-liberal line up in Jones v. US, the GPS case). But here, (in what is most certainly not a criminal prosecution) you seem to think there should just naturally be an exclusionary rule in civil forfeiture cases because, well, just because. There is no history of applying the exclusionary remedy to civil forfeiture and to simply invent one is not a very satisfying way to deal with the law.

The "remedy" (such as it is) is to get rid of civil forfeiture altogether -- or at least to limit those circumstances that give rise to it. I have made this argument many times to conservatives -- and there are those who agree and those who do not. But even those who agree would be unlikely to support an extension of the exclusionary rule tethered to nothing.

Well, me, the trial judge, and three judges on the intermediate appellate court "seem to think there should just naturally be an exclusionary rule in civil forfeiture cases." Are you going to send them a snotty note, too?

I'm fine with arguing to get rid of forfeiture altogether or making them get a criminal conviction, like in New Mexico. But this ruling unhinged police practices in forfeiture cases from any regulation by the courts. Cops can now target folks with illegal searches and, if they find drugs and something they want to seize, they've hit the jackpot even if they can't prosecute the criminal case.

Asset forfeiture is in reality nothing more than criminal punishment dressed up as a civil penalty, with a lower standard of proof. The courts have allowed and even encouraged such criminal-law mission creep, then after it happens say "we can do nothing to regulate it" when cops cheat to get the money. I call BS.

The Fourth Amendment declares, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..." It does not include an exception for civil actions by the state as opposed to criminal-law actions and it's not a particularly conservative judicial viewpoint IMO to manufacture such a distinction where it doesn't exist in the text.

"Snotty"? I merely made what I thought was a pretty response to your view that conservatives should be (in essence) pro-exclusionary rule.

Look, I never said (nor do I think) that the appellate court's reasoning was outlandish. I think there are good arguments to be made on both sides of the "does-the-exclusionary-rule-apply-to-forfeitures" debate. But, in the end, the Legislature has the power (and knows how) to draft a statute that actually fits what you're trying to pretend exists in some penumbra out in the atmosphere -- they already did it with art. 38.23.

Also, you can't quote the Fourth Amendment on the issue of the exclusionary rule and just leave it at that. Yes, it exists, and yes, there is some historical support for such a doctrine. But it ain't in the text -- so it's a bit rich to accuse others of "manufacturing" other distinctions (which don't exist).

The criminal is to go free because the constable has blundered--but not his property. On the face of it, the proposition does not make sense. But Jim is right: the exclusionary rule is not firmly tethered to the Fourth Amendment. In Hudson v, Michigan, for example, the Supreme Court held that even where the police violated the Fourth Amendment by failing to knock and announce, the exclusionary rule would not be applied. What kind of sense does that make ? Either the exclusionary rule is implied in the Fourth Amendment or it isn't. If it is not, the Court has no business suppressing evidence. Of course, my view is that it is implied, and the Texas Court's decision is questionable: the Fourth Amendment does not distinguish between civil and criminal proceedings. The decision , like Hudson, is yet more encouragement for police to violate the law. By God, even the suspect gets off on a technicality, we'll get his property.

Darrow and Scott, I get your bewilderment about the artificial distinction between criminal and civil cases. I really do. But (from the State law point of view), article 38.23 clearly spells out an exclusionary rule, and just as clearly limits its application to criminal cases. That's a pretty good argument that the Legislature never intended for civil cases (including forfeiture) to be touched by it.

As for the Fourth Amendment, well..... let's just say it took a while after its drafting for the Supreme Court to find an exclusionary rule for criminal cases in the Fourth Amendment -- and even longer to apply that to the states. Maybe as a matter of general policy (and this is just my opinion), when we do things by judicial fiat (devoid of statutory or constitutional text), we should probably limit them to the important things. Like not sending someone to jail as a direct result of the "constable" violating their constitutional rights.

Do any of you idiots read history? I'm going to give you all a quick lesson in history so you'll understand where the country is heading.

Back in England a few hundred years ago, the rich, the politicians, the police, and the judges all became corrupt. So a Star Chamber was established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would likely hesitate to convict them of their crimes.

And now we are about to witness a new Star Chamber that will right the wrongs. And not only will we punish those who are corrupt, but their families will also pay a price. And, lastly, their assets will seized and be used to pay down the national debt.

If you're a past or present government employee do not be surprised when your home is raided and you along with your family are brought before our court. Expect Us...

I believe this is firmly rooted in the 4th amendment, there is a reason the framers did not make a distinction between civil and criminal investigation, that being there is no distinction needed and it has not been changed. any court trying to change that with a judicial ruling is overstepping their authority and should be sanctioned bt the SCOTUS for nonjudicial conduct. It is completely insane to think you can violate the constitutional rights of ANY CITIZEN and still prevail to profit from the transgression. I cannot believe that any person of sound mind would buy into this illegal and Totally Immoral scheme. Yes, Boys and Girls, I said scheme because that is what it is. A scheme to separate people from their rightful property to create more funding for others. Scott was completely right to call BS, it certainly is and should be stopped immediately. If it were me I would make it retroactive and force everyone who profited from this scheme repay the victims of their greed 10 fold. Stop this stupidity.

I firmly believe asset forfeiture is akin to the medieval practice of letting troops pillage in lieu of paying them wages. It is a form of "off-the-books" taxation. Whatever legal niceties the courts come up with to allow it, it's still wrong.

Grits, you are dead wrong on this one. Jim is correct. It's CIVIL forfeiture & the statute specifies that civil law applies. I'm not saying it's fair. And sorry, the justices on the 13th Court of Appeals are a bunch of CIVIL lawyers who have shown over & over through the years that they are totally inept at analyzing criminal cases, even in basic concepts such as sufficiency of the evidence. They simply share the arrogance of many of the judges/justices in Texas who don't take the time to properly apply well-established case law handed down by the Texas Court of Criminal Appeals. And as for Justice Willett's concurring opinion where he "lobbies" for a united high Texas court, I suggest we send him to the US Supreme Court where he would surely do less damage to criminal jurisprudence.

Who cares if the cops are punished? The issue shouldn't be whether cops were punished or not. The purpose of the Constitution is for it to be followed, not for the cops to violate Constitution so they can take advantage of their misconduct. If the cops (and most importantly the courts) had followed the Constitution in the first place, there would be nothing to forfeit.

In the original SCOTUS ruling authorizing the "exclusionary rule" it was expressly stated that it was intended to be, and was authorized on the basis of, being a "deterrent" to unlawful police conduct (illegal searches). This deterrent was in effect punishing the police for that unlawful conduct. It was designed and authorized as a tool to "discourage" such unlawful searches. The court recognized that there was (and is, still now) no other effective "remedy", in the criminal context, available to the one(s) unlawfully searched. Then, and now, there is the remedy of a civil lawsuit, but, the court, in making that ruling, implied (and may have directly (or indirectly) stated (cant remember) that such civil remedy, was not effective for that particular problem.

there may be a problem I see , that any person can arrest someone without a warrant, what if a cilivian made the arrest? does it mean I can harras a drug dealer and keep his truck even if he has drugs the arrest might be legal maybe not, but the search is not so do I get to keep his truck ??.. I know this sounds silly but title 1 .code of criminal procedure chapter 14 arrest without a warrant.. say peace officer or any other person may arrest an offender.

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